Criminal Law: Elements of Murder and Available Defenses

This article discusses the elements of murder in criminal law, including actus reus and mens rea. It also explores the available defenses for murder charges, such as diminished responsibility, mistake, and loss of control. The article concludes by discussing other charges that may apply in cases where murder cannot be proven beyond a reasonable doubt.

Criminal Law 1
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Criminal Law 2
CRIMINAL LAW
Question 1
The law on murder has developed from common law. It refers to the act of unlawful
killing of a human being with malice aforethought. This means that the act that leads to the
killing should be one that had been planned prior to the act. There are two elements that have to
be present for a person to be accused, charged and convicted of murder.
The first element is known as actus reus. This element entails the unlawful killing of a
human being. The other important element of murder is mens rea. This element in murder is the
malice aforethought which courts have stated to involve the intention that a person harbors and
ends up in the killing of a human being or causing grievous bodily harm to such person or human
being. The charge of murder is one that carries a mandatory sentence and every judge faced with
sentencing a murder suspect cannot impose a lesser sentence.
Both mens rea and actus reus must exist for a person to be convicted of having
committed murder. Where one element especially the mental one (mens rea) the charge of
murder would be reduced to manslaughter where there is accidental killing of a human being.
In assessing Davina’s liability for murder, the two elements for murder have to be established
to have existed at the time of commission of the Act that led to the death of Anne. Unlawful
killing of a human being therefore involves an act or omission. Therefore, there are two
issues to be determined in this case scenario:
1. Whether Davina had the requisite mens rea for murder
2. Whether Davina had actus reus for murder.
Mens rea for murder is malice aforethought. It requires a prior planning before the execution of
the killing. Courts have interpreted it to involve intention to kill or the intention to cause

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grievous bodily harm. In the case of R v Vicker1, Lord Goddard CJ described murder to involve
the killing of a human being with malice aforethought.
The victim should also die as a result of the injuries occasioned on his or her person by
the act of the accused person. Similarly in the case of R v Cunningham2 House of Lords, the
House of Lords maintained the description of mens rea to the intention to kill or cause grievous
bodily harm. Mens rea for a charge of murder has been held not only to apply to the direct intent
but would also extend to the oblique intention established in the case of R v Woollin 3
Davina was upset with Anne as a result of Anne’s act of stealing her boyfriend. In an
attempt to frighten Anne so that Anne leaves her boyfriend Davina poured white spirit through
the letter box of Anne’s flat and lit a fire. Anne was overcome with smoke, got serious burns and
rushed to the hospital. The doctor at the hospital transfused a different blood sample that led to
the death of Anne. Davina did not have the necessary means rea, her intention was only to
frighten Anne into leaving Bill. She therefore lacked the requisite mens rea for murder.
On whether Davinna possessed the second element of murder, actus reus, the unlawful
killing of a human being.4 This can be committed through an act or omission. The death resulting
from such death should be linked to causation. The question that should be asked is whether the
said death resulted directly from the act of the accused person or there were other intervening
acts that led to the said death.
1 (1957) 2 QB 664
2 (1982) AC 566
3 (1999) AC 82.
4 Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan Smith and Hogan's criminal law (Oxford University
Press, USA, 2015)

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In the case of R v Clegg5the House of Lords held that a person charged with
manslaughter cannot have that charged substituted for murder.6 A person who kills another
without mens rea should be therefore be charged with manslaughter. Davinna did not possess
mens rea and therefore, she can only be charged with manslaughter and not murder.
Question 2
Defenses available for Davina
The defenses available to Davina include; diminished responsibility, mistake and loss of
control.An accused person can plead mistaken belief on the nature and consequences of his or
her actions. Mistake prevents the accused person from developing the required mens rea to
commit murder. The defense of mistake was recognized in the case of R v Tolson 7.
The defense of mistake is applicable in circumstances where the alleged mistake was
honest. In this case scenario, Davina only wanted to threaten Anne. Lighting white spirit was
therefore a mistake in the circumstances.
The other defense is that of diminished responsibility. It is to the effect that the accused
person though committed a criminal act; he or she should not be held to be responsible for the
said criminal act since their mental functions were either impaired or diminished at the time of
commission of the offense.8 In R v Campbell9, it was held that diminished responsibility could be
successfully raised to reduce a charge of murder to manslaughter.
Loss of control is also a defence that Davina could rely on. The accused person could not
control herself and therefore committed the offense by mistake.
Question 3
5 (1995) 1 AC 482
6 Keating, Heather, Sally Kyd Cunningham, Mark Austin Walters, and Tracey Elliot Criminal law: text and materials
(Sweet & Maxwell, 2014)
7 (1889) 23 QBD 168
8 Kadish et al, Criminal law and its processes: cases and materials (Wolters Kluwer Law & Business, 2016)
9 (1997) 1 AC App R 199

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Other than a charge of manslaughter, Davinna could be charged with the offence of
malicious damage to property or arson. Arson results from a reckless behavior where a person
destroys property maliciously through starting a fire.10 Where fire started by a person leads to
destruction of property, such person is guilty of a criminal offence known as arson. In the case of
R v Denton11the trial court rejected the defense of mistake on a charge for arson. Davinna by
using white spirit had developed the mens rea and by proceeding to Anne’s flat and lighting fire,
she completed the two elements required for criminal responsibility to arise; mens rea and actus
reus. She is therefore bears criminal responsibility as an arsonist in the circumstances.
References
10 LaFave, Wayne R. Modern Criminal Law: cases, comments and questions (West Academic Publishing, 2017)
11 (1981) 1 WLR 1446

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Kadish et al, Criminal law and its processes: cases and materials (Wolters Kluwer Law &
Business, 2016)
Keating, Heather, Sally Kyd Cunningham, Mark Austin Walters, and Tracey Elliot Criminal
law: text and materials (Sweet & Maxwell, 2014)
LaFave, Wayne R. Modern Criminal Law: cases, comments and questions (West Academic
Publishing, 2017)
Ormerod, David, Karl Laird, John Cyril Smith, and Brian Hogan Smith and Hogan's criminal
law (Oxford University Press, USA, 2015)
Case Laws
R v Vicker(1957) 2 QB 664
R v Cunningham (1982) AC 566
R v Woollin (1999) AC 82
R v Clegg (1995) 1 AC 482
R v Tolson (1889) 23 QBD 168
R v Campbell (1997) 1 AC App R 199
R v Denton (1981) 1 WLR 1446